Recently at a Symposium on "Copyright Law as Communications Policy"[2] held at Cardozo Law School, Professor Neil Netanel stated that Professor Nimmer in his 1970 Copyright treatise determined that copyright's inherent protections are sufficient to protect the First Amendment. An external application of the First Amendment was therefore unnecessary to protect copyright.[3] These protections included such safety valves as the idea/expression dichotomy, fair use, and the limited duration of copyright.[4] However, he went on to explain that these safety valves are today in 2001 a 'pale expression' of what they were in 1970.[5] This paper attempts to explain why as a result of this whittling away of copyright's inherent protections, the DMCA must necessarily incorporate a fair use privilege for users of protected works. Otherwise, it simply "runs afoul of the First Amendment" and the Copyright Clause[6] in that it "sweeps away the public's existing ability to use such material."[7]

The Digital Millennium Copyright Act, 17 U.S.C. S. 1201, 1202, ("DMCA") provides that no person shall circumvent a security device for purposes of gaining access or for violating Section 106 copyright rights.[8] Limited by those exceptions which Congress wished to include.[9] And one general exception which allows the Librarian of Congress to determine "whether persons who are users of a copyrighted work are…adversely affected by the [S. 1201(a)(1)(A)] prohibition in their ability to make
non-infringing uses of a particular class of copyrighted works."[10]

However, none of these exceptions incorporate the doctrine of fair use.[11] Assumedly one cannot even circumvent the device for gaining access to non-copyrightable aspects[12] of the work.[13] Nor to access works, in combination with copyrightable works, that may have already fallen into the public domain or where the use of the work would not infringe upon the copyright.

Additionally, even if one had a right to lawfully access a work "section 1201 contains no provision enabling the development or distribution of circumvention tools to enable" [14] these individuals to access the work. Thereby denying access to technologically unsophisticated users. "The fact that Congress elected to leave technologically unsophisticated persons who wish to make fair use of encrypted copyrighted works without the technical means of doing so is a matter for Congress unless Congress' decision contravenes the Constitution."[15]

The question therefore presented by this paper is whether the DMCA is constitutional despite its failure to grant a right of access to the underlying (copyrighted) works or as a result of its failure to incorporate the fair use doctrine.

This paper first argues that since fair use can be derived from the copyright clause of the Constitution without resorting to Section 107, if the DMCA is enacted under the Copyright Clause then to not allow for fair use would be unconstitutional. However, the problem with this position is that the courts are far from adopting such a view.[16] Next, the paper argues that implicit in the First Amendment is a public right of access to information and ideas.[17] Again, the problem is that this argument may be of insufficient weight to carry the day.

Finally, regardless of whether a First Amendment right of access exists or inability to allow for fair use the First Amendment must nevertheless be asserted because of the erosion of protections of users rights and the shift in balance to overprotecting copyright. Additionally, the Copyright Clause itself requires the public's right to copy unoriginal material.[18]

Finally, the DMCA is unconstitutional since it abrogates the limits of the Copyright Clause by 1) bootstrapping the limited monopoly provided by copyright clause into a perpetual right with regard to all works;[19] 2) failing to allow access to the underlying (copyrighted) works where the copyrighted work is packaged with public domain works;[20] and 3) enactment under the Necessary and Proper Clause or Commerce Clause abrogates the limits of Congress' power under the Copyright Clause.[21]

II. ROADMAP

Professor David Nimmer asks whether our browsing activity and traditional ability to quote from copyrighted works is A.) "a right of constitutional magnitude, safeguarding First Amendment interests of free speech and the advancement of knowledge? Or [B.)] did the law simply allow those activities, as it would have been economically unproductive to pursue such small scale utilization?" [22]

B. Pay-Per-Use

Under choice (B) one must assume that creators have always been capable of charging for such activities and that in the past they have simply failed to enforce these rights. Therefore, Congress in enacting the DMCA did not have to allow a fair use defense for section 1201 violations. Rather, they could, as they did, independently determine whether to include exceptions to section 1201 violations to aid users interests. (This assumption begs the question of whether the Constitution requires a fair use defense for section 106 infringements?) It should be noted that this point of view recognizes absolute property ownership.[23]

Assuming that this viewpoint is right and that a digital pay-per-use world now allows creators to charge for such activities there are several important questions that must be answered. What if the work is a combination of both copyrighted and non-copyrightable material[24] that have fallen into the public domain? Does the DMCA bootstrap the limited monopoly into a perpetual right with regard to public domain materials or is this only a concern if there is no other access (total lock-up) to the work except through encrypted methodology? Finally, under what authority or enumerated power did Congress enact the DMCA?

What the first two questions indicate is that since the Copyright Clause cannot protect non-copyrightable aspects of a work and public domain materials it is unclear under which enumerated power the DMCA was enacted. Therefore, at this point the paper will briefly set out the arguments for why the DMCA is a proper enactment of Congress' Article I powers and then knock them down on constitutional grounds. Undeniably, the DMCA is a second opportunity for the courts to explain the limits of Congress' Power.

1. Does a Lack of Access to Non-copyrightable and Public Domain Materials mean that Congress Lack Affirmative Power to enact the DMCA under Article I

Congress explains that the DMCA does not allow for a section 107 fair use defense to a charge of a section 1201 violation, but rather 1201 itself includes provisions designed to aid the interests of users. However, these exceptions ignore the fact that

[o]nce the statutory protection lapses, the works pass into the public domain. The encryption on a DVD copy of such a work, however, will persist. Moreover, the combination of such a work with a new preface or introduction might result in a claim to copyright in the entire combination. If the combination then were released on DVD and encrypted, the encryption would preclude access not only to the copyrighted new material, but to the public domain work.[25]

a) Copyright Clause

The DMCA assumedly was enacted under Title 17, the Copyright Act. However, the DMCA fails to grant access to works that are incapable of gaining copyright protection. This failure grants perpetual protection to works that have fallen into the public domain. So how can the DMCA have been enacted under the Copyright Clause?[26]

DMCA proponents argue that such concerns rely on the fact that currently, a state of total lock-up does not exist, and that the courts have not been confronted with a case where access has been denied or the limited term has been extended.[27] Therefore, they do not have to reach the question of under what authority the DMCA was enacted and when confronted with this issue have simply sidestepped a discussion of perpetual rights and access to non-copyrightable materials.[28] By passing on this argument now, the courts are simply delaying the inevitable.[29]

The fact that the case has not presented itself or a state of total lock-up does not yet exist cannot mean that Congress has exercised its powers accordingly: "A federal copyright statute that purported to grant copyright protection in perpetuity would clearly be unconstitutional."[30] Therefore, the DMCA must be unconstitutional in light of the limited times provision of copyright clause because it cannot grant protection of unlimited duration.[31]

b) Necessary and Proper Clause

In response to the Plaintiff Amici's argument that the Necessary and Proper Clause under McCulloch v. Maryland,[32] is a "munificent expansion of Congress' power under Article I…"[33] here are several points. First, McCulloch may not have been decided on the basis of the Necessary and Proper Clause and therefore this argument is moot.[34] Second, textually Article I, Section 8 includes three clauses that provide limitations,[35] therefore to ignore the inherent limitations of the Constitution by munificently expanding each clause via the Necessary and Proper Clause "ignores [its] unambiguous text and repeated Supreme Court opinions holding that Clause 8 is both a grant of power to Congress and a limitation on that power."[36] Therefore, the DMCA cannot be properly enacted under the Necessary and Proper Clause since it cannot abrogate the limits of the Copyright Clause.

c) Commerce Clause

Congress does not have the power to enact the DMCA pursuant to the Commerce Clause. because the DMCA bootstraps the limited monopoly into a perpetual right with regard to non-copyrightable material, whether that material be non-copyrightable per se or having lapsed into the public domain.[37]

As to the latter, "the 'limited Times" provision bars Congress from granting perpetual protection to writings and discoveries … [t]his prohibition should apply regardless of whether Congress legislates under [the Copyright Clause or Commerce Clause], because the evil the restriction is designed to guard against, a perpetual monopoly, is the same in both instances.[38] As to the former, it is informational to consider the analogous situation of database legislation: "[t]he public's constitutional right to copy unoriginal material is not limited to cases in which Congress legislates under the Copyright Clause… [i]t is…a right the Constitution guarantees the public to protect against any congressional effort to provide rights to creators of unoriginal materials."[39]

Despite the fact that there is "no Supreme Court opinion on the relationship between the Copyright and Commerce Clauses"[40] again by analogy the Supreme Court has indicated that where there are limitations on an Article I, Section 8 power, Congress is not free to ignore these limitations: "Unlike the Commerce Clause, the Bankruptcy Clause itself contains an affirmative limitation or restriction upon Congress' power…"[41]

Finally, Justice Thomas's concurring opinion in Lopez indicates that an unfettered Congress under Commerce and Necessary & Proper Clause would render all other Article I Section 8 powers superfluous: "the enumerated powers in the bankruptcy and patent/copyright clauses also contain limitations on Congress's powers, limitations that may not be circumvented willy-nilly by legislating under the Commerce Clause."[42]

The Supreme Court has defined that grant and thereby defined Congress's power, by reference to the originality requirement. Original works promote the progress of science, and therefore are a proper subject of protection. Unoriginal works do not promote the progress of science and thus may not be the subject of protection, regardless of the clause under which Congress legislates. Efforts to enact copyright protection for unoriginal material exceed Congress's enumerated powers, and conflict with the public's constitutional right to copy such material. Congress, buffeted by the winds of private interests, has evidenced little if any interest in confining itself to its enumerated powers, and thus, once again, it will be up to the Court to invalidate yet another unconstitutional act.[43]

In conclusion, under this Court's[44] "reconceptualization"[45] of the Clause 8 grant of power and willingness to reach the constitution to limit the power of Congress[46] the DMCA would be found to be beyond the power of Congress.

A. Constitutional Mandate

Is the right to browse and quote a constitutional right to access the work such that Congress was obligated to draft the DMCA in away to preserve it? Copyright's inherent protections, such as idea-expression dichotomy, fair use, and limited duration, protect an individuals First Amendment rights therefore rendering unnecessary an external application of the First Amendment to protect copyright.[47]

First, as discussed previously, the DMCA did not adopt a fair use provision because it sought to protect users directly through its section 1201 exceptions.[48] However, these exceptions fail to provide for access even when lawfully permitted for users who are technologically unsophisticated users.[49] Second, both the idea-expression dichotomy and limited duration protections are eliminated by not allowing user access to works not capable of copyright protection.[50]

Failure to incorporate such protections must then require such external application of the First Amendment to protect copyright.[51] Such failure to protect "user rights (traditionally protected in the analog world through such devices as fair use)"[52] necessarily rises to constitutional levels. The DMCA therefore fails to provide this constitutional right to access by eliminating fair use and access to works not capable of copyright protection.

Not only does the First Amendment require a right of access or fair use, but it can also be derived from the Copyright Clause: "From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright's very purpose, ‘[t]o promote the Progress of Science and useful Arts'."[53]

There are two cases in which the courts have been willing to recognize a right of public access and therefore trump the rights of the copyright owner. This cases have recognized a "misuse of copyright and found in favor of the public's "interest in free dissemination of information,"" thereby avoided a first amendment conflict.[54]

In Rosemont Enterprises, Inc. v. Random House, Inc.,[55] the Second Circuit "denied injunctive relief holding that the public's interest in obtaining the information contained in the book outweighed either the plaintiff's desire for privacy … or the copyright owner's desire to maximize his financial return."[56] The court specifically held this on the grounds of defendant's public access analysis:[57] "The court correctly recognized that copyright must first be used to protect the public interest in free dissemination … [t]o hold otherwise … would force copyright to conflict with the first amendment."[58]

Another case that examined the public interest in access to information was Time Inc. v. Bernard Geis Associates.[59] Here, the court held that a book based on the Zapruder film which took frames of that film was a fair use, "recognizing the strong "public interest in having the fullest information available on the murder of President Kennedy.""[60]

Second and as an aside, fair use can also be derived directly from copyright notwithstanding section 107 fair use. It seems that in the course of copyright legislation and through a drafting error that occurred at the time of the 1909 act[61] fair use was applied to consumers where previously it only applied to a competitor's use or piracy: "‘As originally promulgated, the fair use doctrine was a fair "competitive" use doctrine designed to enable a rival author or publisher to use a copyrighted work in preparing another publication.' Therefore, the doctrine applied only to competitors, not consumers."[62] Therefore an individual user should not be liable for copyright infringement unless their actions rise to the level of piracy. [63]

III. Proposed Solutions:

There are several simple solutions that would bring the DMCA in line with the purposes and goals of the Constitution. The first is a "general ‘other legitimate purposes' exception"[64] to both the anti-circumvention provision and the anti-device provision of the DMCA to secure fair or ordinary use for users as well as those who may be unsophisticated yet have gained lawful access to the work.[65]

The second would be an exception that states that the DMCA is not applicable to works that are either combinations of copyrightable and non-copyrightable materials.[66] It therefore limits the anti-device provisions to term of copyright after which circumvention would be lawful. Although, these seem to be easily remedied shortcomings, they are also problematic since it allows for marketing of anti-circumvention devices that could be used for piracy as well. However, Copyright "protection has never accorded the copyright owner complete control over all possible uses of his work."[67] It is clearly within the Supreme Court's power to rebuff the efforts that the proprietors here have made to extend copyright "in absolute terms to the exclusion of all else" as they have done over the decades.[68]

IV. CONCLUSION

Ultimately, the DMCA violates several constitutional principles and while it may not be unconstitutional per se it nevertheless should not permitted under current Supreme Court jurisprudence since it ignores the constitutional imperative of "promoting progress;" destroys the balance between copyright owners and users developed under the guiding principles of the constitution by not incorporating a fair use exception;[69] and fails to maintain a "commons" – that body of works which is available for all to use.

First, The DMCA ignores the Constitutional imperative of "Promoting Progress." Article I, Section 8, Clause 8 of the United States Constitution grants Congress the power "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."[70] The primary goal of this clause is to "promote the progress of science" and thereby provide "benefit to the public or community at large."[71] Second, the DMCA swings the pendulum too far in the direction of copyright protection. As protection "is allowed to increase, property rights are easier to assert, and the ability to limit public access to the work is more easily achieved."[72] Third, the DMCA fails to protect and enhance the public domain[73] since materials can be recaptured.

Additionally, having already determined that fair use is fundamental, the DMCA fails to promote the above policies/principles of the Copyright Clause and therefore goes beyond the rights contemplated for copyright owners in the constitution. The DMCA therefore must be found unconstitutional and be revised to include a right to access either the underlying work (as distinct from its copyright) or to allow for a fair use of the copyrighted work.[74]

In closing, Copyright is by nature a government allocation of a speech entitlement to certain persons and not others.[75] An entitlement that can give rise to impermissible motives by the government who are influenced by rent seeking industries who are also allocated the opportunity to draft copyright legislation.[76] Thomas Jefferson was right when he wrote to James Madison describing monopolies as "sacrifices of the many to the few" and adding that "where the power is in the few it is natural for them to sacrifice the many to their own partialities and corruptions."[77]

When Congress seeks to legislate for the few it abandons the primary objective of copyright, which is not to reward the labor of authors, but `to promote the Progress of Science and useful Arts': "To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work....[78] This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art."[79]

[2]Copyright Law as Communications Policy: Convergence of Paradigms and Cultures, Monday April 2, 2001 to be published by Cardozo Arts & Entertainment Law Journal.

[3]Id. Referring to the way that the First Amendment is used to protect against trademark, contractual relations and defamation. Id.

[4]Id. See e.g. Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) (O'Connor, J.) (the Court expressly reconciled the Copyright Act and the First Amendment by upholding the lower court's assertion that: "copyright's idea-expression dichotomy 'strikes a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author's expression.'). Harper & Row also stated that there was no need to create any special First Amendment exception to the scope of copyright law "[i]n view of the First Amendment protections already embodied in the Copyright Act's distinction between copyrightable expression and non-copyrightable facts and ideas, and the latitude for scholarship and comment traditionally afforded by fair use...." Id. at 560.

[5]Id. Two examples he cites are a) literary characters which are protected today but were not then and b) the dramatic extension of the copyright term. Id.

[7] Patry, Enumerated Powers, at 362 citing John O. McGinnis, The Once and Future Property-Based Vision of the First Amendment, 63 U. Chi. L. Rev. 49, 69 (1996) (drawing a distinction between copyright, which vests individuals with "retention value" in information, and a First Amendment "use value" right to transmit noncopyrightable information).

[8] S. 1201(a)(1)(A) (2001). Indeed the precise language of the act states that "[n]o person shall circumvent a technological measure that effectively controls access to a work protected under [copyright]. Id.

[10]S. 1201(a)(1)(C). Having conducted their initial rulemaking examination the Librarian of Congress has determined that for the three year period from October 28, 2000, to October 28, 2003 the following two exceptions shall apply: 1) Compilations consisting of lists of websites blocked by filtering software applications;
and 2) Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage or obsolescence. SeeRulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works, at http://www.loc.gov/copyright/1201/anticirc.html.

[11]
Section 1201(c)(1) indicates that the fair use exception applies only as a defense to cases of copyright infringement. Thereby denying a fair use defense to '1201 violations. "Nothing in this section shall affect the rights, remedies, limitations, or defenses to copyright infringement, including fair use…." Id.

[12] "Congress may not extend protection to unoriginal subject matter, nor to ideas, processes, methods of operation, and the like." Feist, 499 U.S. at 349-50; Baker v. Selden, 101 U.S. 99, 103-04 (1879).

[13]
So long as "critics could quote from a given work in a newspaper or copy a clip of a movie from another medium, like videotape, First Amendment rights remained protected." Amy Harmon, Judges Weigh Copyright Suit on Unlocking DVD Shield, NY Times, at http://www.nytimes.com/2001/05/02/technology/02CODE.html
(May 2, 2001) (remarks of Judge Jon O. Newman, an expert on copyright issues, responding to oral argument of Kathleen Sullivan, dean of Stanford Law School, who is representing Mr. Corley in his case, MPAA v. 2600 (officially Universal v. Reimerdes), before the Second Circuit Court of Appeals on May 1, 2001, that fair use was not necessarily guaranteed in the manner Ms. Sullivan suggested: "she compared the lower court's injunction to prohibiting the publication of blueprints to build a copying machine. Although a copying machine could be used for copyright infringement, it also has many other legitimate uses…And some of those purposes come under the "fair use" doctrine, which has historically balanced the free-speech rights of users with the rights of copyright holders…."). SeeBrief Amicus Curae in Support of Defendants-Appellants, Supporting Reversal, supra, note 13, at fn. 12 citing Universal v. Reimerdes, 111 F. Supp. 2d at 322 n.159, 338 n.245. ("The District Court did not directly address this question, but appeared to suggest that inability to copy from public domain works does not present a constitutional problem as long as alternative avenues of access to those works exist, or as long as only a few such works have been rendered inaccessible."). See also Carl S. Kaplan, Questioning Continues in Copyright Suit, NY Times, (May 4, 2001)
("Judge Newman expressed extreme skepticism on that point, as well as many others urged by Ms. Sullivan, repeatedly asking her to point to a form of fair use which has been flatly eliminated by the act."); see generally Nimmer, DMCA, 148 U. Pa. L. Rev. at 727-29. But see Brief Amicus Curae in Support of Defendants-Appellants, Supporting Reversal; Universal v. Reimerdes (Jan. 26, 2001), at http://www.eff.org
("In the context of intellectual property, the First Amendment does not require proof that the affected individuals lack alternative avenues of expression. Rogers v. Grimaldi, 875 F.2d 994, 999 (2d Cir. 1989) ("[T]he 'no alternative avenues' test does not sufficiently accommodate the public's interest in free expression.
. . . The District Court's "alternative avenues" approach is especially inadequate as applied to copying of public domain material. Public domain information, including copyright-expired information, is no-one's "property." Within the constitutional framework of copyright law, the right to copy from the public domain is the essence of what the First Amendment protects.").

[16]
"I'm a great admirer of Professor Patterson's work, and you're right he does argue exactly that. Someday I am hopeful the courts are close enough to his position to make it useful to argue. At the moment, however, the world is far from this view." (e-mail from Lawrence Lessig to the Author, May 5, 2001 in response to Author's view that "in a nutshell L. Ray Patterson argues that ordinary use was ‘misplaced' by the 1909 Act and subsequently revived in Sony.
Under this theory, fair use is derived from the copyright clause without resorting to Section 107.")

[17]See L. Ray Patterson, Free
Speech, Copyright, and Fair Use, 40 Vand. L. Rev. 1 (1987)(Professor Patterson quoting Board of Education v. Pico, 457 U.S. 853, 866 (1982) (Brennan, J., plurality opinion) states that
free speech encompasses the right to have access to ideas: "Our
precedents have focused 'not only on the role of the First Amendment in fostering individual self-expression but also on its role in affording the public access to discussion, debate, and the dissemination of information and ideas.'").

[18]
The public's right to copy unoriginal material is a constitutional
requirement and is not limited to when Congress legislates under the
Copyright Clause. Patry, Enumerated Powers, at 368, 69 citing Feist and Bonito Boats, 489 U.S. at 164-65.

[19]
"A federal copyright statute that purported to grant copyright protection in perpetuity would clearly be unconstitutional." 1-1 Nimmer on Copyright S. 1.05 (2000). "It would seem, for example, that copyright's ''limited times'' cannot be exceeded under the commerce banner." 1-1 Nimmer on Copyright S. 1.09, n.54, citing United States v. Moghadam, 175 F.3d 1269, 1274 n.9, 1280, 1281, 1282 n.17 (11th Cir. 1999) ("The court warned that its ruling 'should not be taken as authority that the other various limitations in the Copyright Clause can be avoided by reference to the Commerce Clause.'" Id. at 1281 n.14.).

[20]
"Protection for unoriginal works would also be problematic." 1-1 Nimmer on Copyright S. 1.09, n.55, citing Moghadam, at 1281 n.14, citing Nimmer, The End of Copyright, 48 Vand. L.Rev. 1385, 1413 (1995).

[21]
DMCA was not enacted pursuant to any of congress' enumerated powers:
"The law thus gives industry coders more control over copyrighted material than the Constitution gives Congress." Lawrence Lessig, Copyright Thugs, Standard Media International, (May 04 2001).

[23]
Nimmer, DMCA at 716. However, this conflicts with the Founders and Supreme Court's understanding of Copyright as a regulatory concept. See generally Stephen S. Zimmermann, A Regulatory Theory of Copyright: Avoiding a First Amendment Conflict, 35 Emory L.J. 163, 179 (1986) discussing both Thomas Jefferson's and the Supreme Court's in Sony views of copyright.

[24]
For example, Feist say that facts are free for the taking! See Feist Publications v. Rural Tel. Serv. Co., 499 US 340, 348-49 (1991)("no matter how much original authorship the work displays, the facts and ideas it expresses are free for the taking").

[E]ven though the
antidevice provision effectively eliminates fair use for most users of digitized works, the court concluded that the DMCA is congruent with the First Amendment. It reached this surprising result because it erroneously treated the Appellant's challenge as an overbreadth challenge, 111 F. Supp. 2d at 336-37. The court reasoned that since Corley himself has not been frustrated by CSS in, for example, quoting from a video in instructional materials, his argument must
raise the rights of others.

[28]See Amicus Brief from Law Professors for the Plaintiffs in MPAA v. 2600 Case (officially Universal v. Reimerdes), March 12, 2001 (Rodney A. Smolla, Erwin Chemerinsky, Kenneth L. Karst, Marcy Strauss). The Brief states that punishing copyright piracy "is outside the scope of the Constitution only if punishing the aiding and abetting of federal law violations, and deterring violation of federally-created rights, [is] outside the scope of the Constitution." Id. Further, in their discussion of Congress' ability to enact the DMCA pursuant to the Commerce Clause they completely ignore whether it abrogates the Copyright Clause and focus entirely on the fact that Congress has the "plenary power to punish economic transactions in interstate commerce…." Id.

[29] This will surely occur, shortly, if Reimerdes is upheld as Congress has taken the necessary steps to set up the legal framework for a pap-per-use society. Will the courts then readdress this issue? Will the Library of Congress consider this a problem when it examines the availability for use of copyrighted works on users in 2003 pursuant to its '2001(a)(1)(C)
rulemaking ability? See supra footnote 10.

[31]
The "Intellectual Property Clause authorizes Congress only to grant
exclusive rights in Writings and Discoveries, and only for limited Times." Amicus Curae Brief in Support of Defendants-Appellants, Reimerdes. However, the "anti-device provisions [of the DMCA] are not limited in scope to protection of statutory rights in writings still under copyright protection; instead, they ban devices regardless of whether the devices are actually used to gain access to, or infringe copyright in, a work that copyright protects." Amicus Curae Brief in Support of Defendants-Appellants, Reimerdes citing The
Trade-Mark Cases, 100 U.S. 82, 93-94 (1879).

[36] Patry, Enumerated Powers at 373 citing Bonito Boasts 489 U.S. 141 (1989) (O'Connor, J.) (the Intellectual Property Clause "contains both a grant of power and certain limitations upon the exercise of that power."). See also Graham v. John Deere Co., 383 U.S. 1, 5 (1966) (the Intellectual Property Clause "is both a grant of power and a limitation").

[37]See generally 1-1 Nimmer on Copyright S. 1.09 ("copyright's ''limited times'' cannot be exceeded under the commerce banner …[p]rotection for unoriginal works would also be problematic….") (citations omitted).

[45] As per Patry the Court "reconceptualized" the Copyright Clause in Feist, 499 U.S. 340 at 350 (9-0 opinion) when it explained: "Raw facts may be copied at will. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science." Thus, "the purpose of the Clause 8 grant is to promote the progress of science, not to reward authors." Patry, Enumerated Powers at 366-67. Feist holds that the public's right to copy unoriginal material is a constitutional requirement and is not limited to when Congress legislates under the Copyright Clause. Id,. at 368, 69 citing Feist and Bonito Boats, 489 U.S. at 164-65 (9-0 opinion). "Indeed, the public's constitutional right to copy unoriginal material would not be much of a right if Congress could take it away by statute, regardless of what clause the statute is enacted under." Id. at 371. "[T]here is no property right giving the creator the right to control unauthorized reproduction of the contents." Id. at 382.

[47] "Both the fair use doctrine and the idea-expression distinction in copyright law serve indispensable First Amendment functions. The fair use doctrine prevents private censorship, and preserves First Amendment freedoms, by shielding critical commentary and parody of privately owned
expression. Harper & Row, 471 U.S. at 560. The idea-expression distinction ensures that uncopyrightable facts and ideas and unpatentable functional principles remain in the public
domain for future creators to build on. Harper & Row, 471 U.S. at 556. Without these doctrines as safety valves to prevent "abuse of the copyright owner's monopoly as an instrument to suppress" facts, ideas, and critical commentary, copyright law would impermissibly abridge the freedom of speech. Harper & Row, 471 U.S. at 559-60." Brief Amicus Curae in Support of Defendants-Appellants, Supporting Reversal, supra, note 13.

"…the fair use doctrine provides protection for the Herald's conduct.
Thus, the asserted "tension" between the Copyright Act and
the First Amendment simply does not exist in this case. The Copyright Act itself provides a safety valve fair use to minimize this potential tension. Indeed, the fair use doctrine has been recognized as "a substantial rule of copyright law that can on occasion reduce the inherent tension between free speech and property rights in expression."" Triangle Publications, Inc. v. Knight-Ridder Newspapers, Inc., 626 F.2d 1171 (5th Cir. 1980).

[48]
"Under copyright law, a user has the right of fair use. Under the DMCA, the user has a right to fair use only if the code of the copyright protection scheme permits it. If the code does not permit fair use, then the user commits a crime if he makes and distributes tools that would enable others to crack the copyright protection system, even for purposes of fair use. The law thus gives industry coders more control over copyrighted material than the Constitution gives Congress." Lawrence Lessig, Copyright Thugs, Standard Media International (May 04 2001).

[49]
See supra notes 14-15 and accompanying text. See Nimmer DMCA, at 735-36 example indicating that aiding a user would still be a violation under the 1201(a)(2) trafficking provisions since the exemption only apply to the 1201(a)(1) anti-circumvention provision.
"There is no authority for the notion that First Amendment limitations on the reach of copyright are satisfied if "sophisticated" users have a fair use privilege while "unsophisticated" users do not. The First Amendment restriction is general, not elitist. The privilege Harper & Row presume reaches every citizen, not just those trained to hack. And
thus the decision by Congress to deny fair use rights to one class of users is inconsistent with the presupposition of Harper & Row." Profs. Benkler & Lessig, Amici Brief in "MPAA v. 2600" Case Brief of Amici Curiae in Support of Appellant; Universal v. Reimerdes (Jan. 26, 2001).

[50]See supra discussion at note 37. See also Brief Amicus Curae in Support of Defendants-Appellants, Supporting Reversal, supra, note 13 ("Within the constitutional framework of copyright law, the right to copy from the public domain is the essence of what the First Amendment protects.").

[51]
Professor Patterson states that free speech encompasses the right to have access to ideas: ""Our precedents have focused 'not only on the role of the First Amendment in fostering individual self-expression but also on its role in affording the public access to discussion, debate, and the dissemination of information and ideas.'" Board of Education v. Pico, 457 U.S. 853, 866 (1982) (Brennan, J., plurality opinion)." L. Ray Patterson, Free Speech, Copyright, and Fair Use, 40 Vand. L. Rev. 1 (1987).

[61]
Act's addition of the right to copy to the copyright owner's exclusive rights and the elimination of the specification-of-infringement section which led to the right to copy associated with books. Prior to the 1909 Act, the consumer's use was neither fair nor unfair; it was merely ordinary. See L. Ray Patterson, Free Speech, Copyright, and Fair Use, at 45.

[62]L.
Ray Patterson, Free Speech, Copyright, and Fair Use, quoting Edith Drone. The reasoning was based on the distinction between the use of the work and the use of the copyright. Patterson holds that this "is the key to establishing a rational fair use doctrine and protecting free speech rights. The competitor uses the copyright; the consumer uses the work. The copyright owner, by reason of the Copyright Act and the copyright clause, has not only no right to interfere, but a duty not to interfere with the consumer's use of a publicly disseminated work. Id.

[63]
Despite that Sony may be seen as an anomaly, this is the reason that under nineteenth century jurisprudence starting with Folsom v. Marsh, 9 F. Cas. 342, No. 4901 (C.C.D. Mass. 1841) and ending with the interpretation of the 1909 Act. See Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984). But see DMCA Legislative History indicating that the DMCA pre-empted Sony because it did not consider perfect copies. However, it seems ridiculous to say that Sony could be pre-empted in so far as "it treats the fair use doctrine as a fair competitive use doctrine, implicitly acknowledges that the copyright clause incorporates free speech values and recognizes a distinction between use of the copyright and use of the work." L. Ray Patterson, Free Speech, Copyright, and Fair Use, 40 Vand. L. Rev. 1 (1987). Additionally, the DMCA can not overrule Sony insofar as DMCA is at odds with the Constitution. However, "the ultimate issue is whether the copyright clause requires that the right of public access to publicly disseminated copyrighted material be respected during the term of the copyright" which has not yet been sufficiently dealt with by the Supreme Court. Id.

There are five notable cases over a century and a half -- 1834-1992 -- that aid an understanding of the copyright clause. In these cases, the U.S. Supreme Court acted to protect copyright law against the intrusion of natural law urged by copyright holders in an effort to expand the copyright monopoly beyond its constitutional boundaries. The first example was an effort to get judicial recognition of the common law copyright based on natural law in Wheaton v. Peters in 1834; the second was to get judicial recognition of a copyright for ideas in Baker v. Selden in 1880; the third was to extend the copyright monopoly to the secondary market in Bobbs-Merrill Co. v. Straus in 1908; the fourth was to make the individual user liable for copyright infringement in Universal City Studios v. Sony Corp. in 1984; and the fifth was to extend copyright to public domain material in Feist Publishing Co. v. Rural Telephone Co. in 1991.

[69] "The anti-circumvention language of H.R. 2281, even as amended, bootstraps the limited monopoly into a perpetual right. It also fundamentally alters the balance that has been carefully struck in 200 years of copyright case law, by making the private incentive of content owners the paramount consideration - at the expense of research, scholarship, education, literary or political commentary, indeed, the future viability of information in the public domain. In so doing, this legislation goes well beyond the rights contemplated for copyright owners in the Constitution." David Nimmer, A Riff On Fair Use in the Digital Millenium Copyright Act, 148 U. Pa. L. Rev. 673, 721 (2000).
Additionally, it fails to provide a distinction between use of the work and use of the copyright. "In Sony the copyright's subject matter was the product of new technology, motion pictures broadcast over the public airwaves. The fundamental issue was whether the copyright owner had the right to control individual access to material that had been disseminated publicly only within a short and rigid time frame and thereby to limit public access. The Supreme Court held that the copyright owner did not have this power.